Technical suitability, copyright concerns and accessibility

Alison Davidson has been the Document Delivery Librarian for the University of Bath since December 2018. She has worked in academic libraries since 2010 in a variety of areas including; educational technology, alternate format production, e-resources, and scanning. Her current role manages the library’s document delivery services and team, including the scanning service for staff, and copyright education. She is part of the Avon University Libraries in Cooperation (AULIC) CLA group.

I’m from British Columbia, where you can still pan for gold, drink in a saloon, and – if you’re a big research university – choose to forgo the national copyright license and secure all your own direct permissions yourself. When I first began working in copyright 8 years ago, it was for a library service that created alternate formats for students in HEIs. These were the days before Canada signed the Marrakesh Treaty, where publishers had no obligation to provide accessible book files, so we’d buy copies of texts, chop the spines off, and scan entire books with run-of-the-mill office printer-copiers.
None of this was breaking licenses or laws, but it highlights the lateral thinking that library staff often have to employ. Even now in the UK, where 2014 amendments to the CPDA, the ratification of the Marrakesh Treaty, and more cost-effective technology, have made scanning and clearing permissions easier and faster, we still find ourselves asking colleagues to print the last 3 pages we need from an e-book because the publisher’s printing limits falls short of the chapter we need.

It’s these types of technical protection measures that have fallen behind the times. Since Napster first came on the scene, rightsholders have complained that copyright legislation is out of date, left in the wake of advancing technology that allows users of creative works to become copiers and even creators themselves. In many ways, they’re still correct. However, it wasn’t until recently that technical unsuitability has come under similar scrutiny.

Technical Suitability
The topic of ‘technical suitability’ comes up regularly amongst academic library staff who manage digitisation and copyright. It’s a useful clause in the CLA’s HEI Licence’s ‘Grant of Licence’ that allows authorised persons to create digital copies providing they’ve determined that their digital version isn’t “technically suitable for the purpose”. This is commonly interpreted as meaning we can make a digital copy of a chapter from a limited user access e-book for a course because the limited user access component makes it technically unsuitable for the purpose of assigned course readings.

Limited user access is only one major hurdle however; the other is the print/copy limits that often prevent students from printing out their full assigned readings, which means they have to read online – in turn preventing their classmates from accessing the e-book if limited user access is also in place. Print/copy limits also hinder library staff trying to make digital copies as they’re often arbitrarily set and usually less than the page range of a single chapter or 10%. To add insult to frustration, publisher’s often use poor quality files for printing/copying so what staff and students manage to print out or digitise is barely legible.

Technical Protection Measures
TPMs are used to protect copyrighted material from piracy while still making it available to consumers. However, they are the prime cause of technical unsuitability, often preventing use that is permitted by exceptions used widely throughout higher education institutions, such as the educational and print-disabilities exceptions.
Types of TPM include access control or copy or use controls, which, in the context of higher education libraries means institutional log-ins, user access models, and print/copy limits. Both of these measures are commonly used by academic e-book publishers and they’re within their rights to do so. Students and academics are also within their rights to access digital content through copyright exceptions however; leaving library staff stuck in the middle with some lateral thinking to do.

The Future
There have been noticeable improvements in the past several years, more academic publishers are allowing aggregators to distribute their e-books DRM-free and some have removed their print/copy limits. This is part of a growing trend that has resulted in Article 7 of the new Digital Single Market Directive which states that TPMs should “not prevent the enjoyment of the exceptions and limitations provided for in this Directive”. Unfortunately, the only exception or limitation regarding illustration for teaching is a provision for cross border digital teaching activities between EU Member States. Excellent for TNE licensing perhaps, but for now it seems our best chance is the evidence of high usage for DRM-free e-books and the problem-solving skills of library staff.

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